IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 299 of 2003()
1. E.K.GEORGE, S/O. KURIYPEE, RESIDING AT
... Petitioner
Vs
1. SRI.K.N.BABY, AGED 41 YEARS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.P.B.ASOKAN
For Respondent :SRI.S.U.NAZAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :24/08/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 299 OF 2003
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Dated this the 24th day of August, 2009.
J U D G M E N T
This appeal is preferred against the order of acquittal
passed by the Judicial First Class Magistrate-V,
Thiruvananthapuram in S.T.34/01. It is the case of the
complainant that the accused had borrowed a sum of
Rs.1,15,000/- and towards the discharge of the liability had
issued a cheque which when presented for encashment
returned with the endorsement of funds insufficient.
Thereafter a statutory notice was issued which returned
unclaimed and thereafter prosecution has been launched. It
appears to be the defence that while the wife of the accused
was undergoing treatment in a hospital for cancer the accused
had borrowed a sum of Rs.15,000/- from the complainant who
is a money lender and at that time had issued a promissory
note as well as a cheque for Rs.15,000/- written only in
figures and not in words. The said cheque had been misused
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and the case has been filed. PW1 is the complainant. He had
deposed about the transaction as alleged in the complaint. He
had deposed that the accused had brought the cheque written
and signed it before him and he had also requested the
complainant not to present the cheque for two months and
that was the delay in presenting the cheque for encashment.
The suggestion is that a cheque written in figure of
Rs.15,000/- has been corrected as Rs.1,15,000/-. The learned
Magistrate also found it to be possible and probable that the
figures Rs.15,000/- had been corrected as Rs.1,15,000/-. I
had meticulously perused the cheque. Every person has got a
different style of writing. It can be seen that the entire writing
is made by the same person. The only suspicious character
thereunder is that there is a full stop after the printed word
‘Rupees’. The ‘1’ in Rs.1,15,000/- has gone to the left side on
that point and therefore the learned Magistrate jumps to the
conclusion that there is material alteration. I am afraid that it
should not have reached such a conclusion with the naked eye
comparison. Therefore that finding has to be vacated.
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2. Similarly there is a definite case that the accused in
313 questioning stated that he has issued a notice to the Bank
to stop the payment on 12.12.1997 alleging that the cheque
leaves had been lost. The present cheque is dated only
30.12.97. If he had already issued a registered letter on
12.12.97 certainly one can visualize the correctness or the
truthfulness of the whole story. For this purpose an application
was filed by the complainant after the 313 questioning to
recall the Manager and adduce evidence. Unfortunately the
Court below rejected that request. It was improper. It should
have gone a long way to find out the truthfulness of the case.
Therefore I feel opportunities can be given to both the sides to
adduce further evidence in support of their respective
contentions in order to enable the Court to arrive at a right
decision. Therefore the order of acquittal passed is set aside
and the matter is remitted back to the trial court with a
direction to permit both the parties to adduce additional
evidence and produce documentary evidence in support of
their respective contentions and then dispose of the matter
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afresh in accordance with law. Parties are directed to appear
the Court below on 8.10.2009.
M.N. KRISHNAN, JUDGE.
ul/-
Crl.A. No. 229 OF 2003
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M.N. KRISHNAN, J.
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Crl.A. No. 229 OF 2003
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J U D G M E N T
24th August, 2009